Saturday, July 30, 2011

THE UNLAMENTED DEATH OF THE TRUTH COMISSION

When the report on the final death knell on the Truth Commission was announced by the Supreme Court, there was no lamentation in the Palace. Secretary Lacierda simply said in a matter of fact way that the Palace accepted the decision. No one was surprised by such reaction. The main reason for the issuance of Executive No. 1 creating the Truth Commission, after all, was the obvious Palace perception that the Office of the Ombudsman could not be relied upon to pursue a campaign of walang corrup, walang mahirap. With the departure of the former Ombudsman, the Truth Commission became obviously unnecessary.As a matter of fact, moreover, under the terms of the original Supreme Court decision, the Palace could have easily amended the provisions of Executive Order to make it conform with the demands of constitutionality. The cardinal sin of the executive order was that in the Court’s judgment it violated the requirements of equal protection. As the Court said: “Although the purpose of the Truth Commission falls within the investigative power of the President, the Court finds difficulty in upholding the constitutionality of Executive Order No. 1 in view of its apparent transgression of the equal protection clause enshrined in Section 1, Article III (Bill of Rights) . . . The petitioners assail Executive Order No. 1 because it is violative of this constitutional safeguard. They contend that it does not apply equally to all members of the same class such that the intent of singling out the ‘previous administration’ as its sole object makes the PTC an ‘adventure in partisan hostility.’” Thus the Court also agreed with the contention that “in order to be accorded with validity, the commission must also cover reports of graft and corruption in virtually all administrations previous to that of former President Arroyo.” The Court, however, concluded: “Lest it be misunderstood, this is not the death knell for a truth commission as nobly envisioned by the present administration. Perhaps a revision of the executive issuance so as to include the earlier past administrations would allow it to pass the test of reasonableness and not be an affront to the Constitution.”The Palace, however, chose to let the Truth Commission die. My impression is that the government’s motion for reconsideration was filed half-heartedly. Hence, the defeat was unlamented. Why so? Because, aside from the fact that there would be a new Ombudsman, the decision was in fact an affirmation of the legality of the Palace’s determination to pursue a campaign against graft and corruption.The decision, very importantly, was and is an affirmation of the elastic powers of the presidency. This affirmation is based on often ignored portion of Article VII, Section 17 of the Constitution which says that the President “shall ensure that the laws be faithfully executed.” This is the same phrase on which President Cory Aquino relied when she denied the request of former President Marcos to return from his exile. She contended that his return could disturb the legal order of the nation. The Court affirmed her saying that “although the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of ‘executive power.’ Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated.” Echoing this earlier decision, the Truth Commission decision said: “Indeed, the Executive is given much leeway in ensuring that our laws are faithfully executed. As stated above, the powers of the President are not limited to those specific powers under the Constitution. One of the recognized powers of the President granted pursuant to this constitutionally-mandated duty is the power to create ad hoc committees. This flows from the obvious need to ascertain facts and determine if laws have been faithfully executed.”The Truth Commission was also challenged on the ground that it was a usurpation of the powers of the Ombudsman and of the Justice Department. On this point the Court said: “Contrary to petitioners’ apprehension, the PTC will not supplant the Ombudsman or the DOJ or erode their respective powers. If at all, the investigative function of the commission will complement those of the two offices.”When one considers these strong affirmations of the scope of executive power, one can see why President Aquino, in his second SONA, was so confident in his determination to pursue of his administration’s campaign to unmask and punish those who have committed graft and corruption. In fact, the ongoing investigations of the PCSO scandal and the election, fertilizer and ZTE scandals are in fact, without announcing it in so many words, an implementation of the goals of the Truth Commission. And no one is complaining about violation of equal protection. Indeed there is no discrimination; only prioritization.1 August 2011